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Microsoft Injunction Appeal Heats Up

As the date for Microsoft's appeal of the i4i patent infringement win and the court-ordered permanent injunction against selling infringing copies of Word, the briefs are flying and things are becoming clearer. One of those is that, should Microsoft lose, a lot of companies, indeed, might also be vulnerable to charges of infringement.

A quick reminder: the cases is about whether the i4i patent governs how Microsoft implements XML open standards in Word as a method of formatting documents through using "metacodes." I had mentioned before how a number of companies, including Google and Apple could ultimately feel the sting. And the arguments in Microsoft's brief underscore how widely the i4i patent might be interpreted. The whole concern seems to pivot around a single word: distinct.

The i4i patent in question has as its first claim the following:

A computer system for the manipulation of the architecture and content of a document having a plurality of metacodes and content by producing a first map of metacodes and their addresses of use in association with mapped content; said system comprising:metacode map distinct storage means;

means for providing a menu of metacodes to said metacode storage means;

and means for compiling said metacodes of the menu by locating, detecting and addressing the metacodes in the document to constitute the map and storing the map in the metacode storage means; and

means for resolving the content and the metacode map into the document.

That would seem to suggest that the patent covers handling the content and formatting metacodes in separate files. In fact, in the description of the invention in the patent itself, i4i wrote the following:
Documents combining structure and content are inflexible because they tie together structure and content into a single unit which must be modified together. The content is locked into one structure embodied by the embedded codes. Changes to either the structure or the content of the document require a complete new copy of the document. To make changes to the original document structure a new copy of the document must be created. This new copy can either be saved independently resulting in two versions of the document, or it can be saved over the original--effectively destroying it. This is true even if the content does not differ in any way from the original. Similarly if the structure remains identical but the content changes slightly.Further, current procedures are inefficient. Since document content is inextricably enmeshed with its format, each change to either the content or the format requires either that a whole new copy of the document be created, or that the original be overwritten. This becomes a serious problem for documents which are revised often, especially if the older revisions need to be kept.
And yet more:
Accordingly, in its broadest aspect the invention provides a computer system for the manipulation of the architecture and content of a document having a plurality of metacodes and content by producing a first map of metacodes and their addresses of use in association with mapped content; the system comprising metacode map distinct storage means; means for providing a menu of metacodes to the metacode storage means; and means for compiling the metacodes of said menu by locating, detecting and addressing the metacodes to constitute the map and storing the map in the metacode storage means.
That sounds like treating the content and metacodes separately as a way of processing the document. The question is what distinct means. Does it mean a separate file, or just a separate area in memory while code is executing? Here's what seems to be the heart of Microsoft's appeal:
Because i4i's own experts admitted that Word does not store a metacode map in a separate file from content, and does not allow for independent manipulation of a metacode map and mapped content, the jury's infringement verdict should be reversed.
If the appeal is unsuccessful, then it could be that potential infringers could be a pretty wide group of companies, particularly as there are many custom versions of XML used for industry-specific data processing. As Prof. Dennis Crouch, a well-known patent commentator, wrote in his blog:
Microsoft argues that the "distinct" language requires that the mapped content be stored "separately and distinctly." The district court rejected that argument and instead that the "distinct" limitation only required distinct addresses in memory. Because Microsoft Word stores the map and the metacodes in the same file, the company argues that it cannot infringe under a proper construction.
As I said, this could have a wide impact should it hold up.

Both Dell and HP filed amicus briefs stating that they would be heavily injured economically and consumers harmed should they no longer be able to sell Word.

On a somewhat more amusing note, the Eastern District of Texas, where i4i brought suit, is known as being a plaintiff-friendly venue. So it was interesting to see i4i's chairman Loudon Owen quoted in TG Daily as to how people seemed to misunderstand the company's choice of venue:

The driving factor behind i4i's decision to choose Texas as a venue for the trial was the fact that our legal team is based in Dallas. The court is actually under federal, not state jursidiction and maintains a high degree of patent expertise. It is unfortunate that regional differences continue to be highlighted in the context of this trial.
How understanding of i4i. After all, who would want to ask one of the top patent firms in D.C., Boston, New York, Seattle, or Silicon Valley to travel, let alone work with federal courts in backyards that are hotbeds of technical intellectual property.
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